There is not a week that goes by when a client does not ask me “Has the doctor done this to anyone else?” or “Why did the hospital let the doctor practice at its facility?”
These are straightforward and understandable questions. After all, people regularly check out service providers at sites like the Better Business Bureau or Angie’s List. Yet, the medical profession is unique in that its self-policing is shrouded in secrecy.
One of the first secrets of Texas health law is that the “corporate practice of medicine” doctrine says that hospitals cannot employ doctors. In other words, doctors practice medicine, not hospitals. Never mind that hospitals all over Texas advertise that they have the best cutting-edge doctors in various fields. Hospitals employ nurses, technical personnel and administrators. Doctors, on the other hand, are independent contractors that are not hospital employees. So, when a patient is injured because of medical errors, the people who run the hospital are quick to points their fingers at the doctor and remind the patient that the doctor does not work for the hospital.
So how is it that these independent contractor doctors come to work at hospitals in Texas? This brings us to a second secret of Texas health law—physician credentialing. Credentialing is the process that a hospital uses to decide whether or not to let a doctor practice medicine at its facility, including what type of procedures the physician can perform there. For example, a neurosurgeon may be granted staff privileges by a hospital to perform brain surgery, but would not likely be allowed to perform a lap-band procedure.
Once a doctor receives credentials (official permission) to work at a hospital, the health care that the doctor provides is subject to peer review by hospital committees. This is the third secret of Texas health law. Peer review is a process in which a doctor’s colleagues evaluate that doctor’s performance. The committees consider whether the doctor’s care is safe for patients, and whether it meets the standards of what a reasonable doctor would do.
While virtually every patient and family member would think this information would be highly relevant and useful in selecting a doctor, Texas law allows health care providers to keep it confidential, secret and hidden from the public.
Houston’s Fourteenth Court of Appeals has described that the confidentiality privilege enjoyed by hospitals and doctors “cloaks all proceedings and records of a credentialing body in secrecy.” KPH Consolidation, Inc. v. Romero, 102 S.W.3d 135, 146 (Tex. App.—Houston [14th Dist.] 2003), affirmed 166 S.W.3d 212 (Tex. 2004). Texas Occupations Code Section 160.007 provides that “each proceeding or record of a medical peer review committee is confidential, and any communication made to a medical peer review committee is privileged."
This means that patients and families have to take a big leap of faith and hope that hospitals take their secret credentialing and peer review processes seriously. It is impossible for patients and families to review, for example, the past outcomes of doctors or whether there are serious problems with patient safety. In fact, the only way the public typically finds out about an incompetent doctor is when multiple bad, unexpected outcomes are publicized through lawsuits or media attention.
So, when this happens, what about the hospital’s responsibility? Can the hospital be held accountable for improperly credentialing a doctor, or for allowing an incompetent doctor to continue to practice medicine at its facility?
Instead of the simple negligence standard used in most types of cases (i.e., What would a reasonable person or hospital have done under the circumstances?), when a plaintiff sues a hospital for improper credentialing or peer review of a doctor, Texas law requires the standard of “malice.” In other words, the injured patient or family must plead and prove that the hospital maliciously allowed a doctor to practice at its hospital.
Any time a standard of malice applies, it is difficult to prove. Texas Civil Practice & Remedies Code Section 41.007 requires proof that the hospital had: (1) specific intent to cause substantial injury to the patient; or (2) an act or omission that objectively involved an extreme degree of risk, which the hospital was actual aware of, but chose to proceed with conscious indifference to the patient’s rights, safety and welfare.
What can patients do to get information about their doctors in this secretive health care environment?
You can start by checking your doctor's profile on the Texas Medical Board website.
Once you go in to the doctor's office, do not be afraid to ask some questions.
When you are seeing doctors for the first time, ask things like where they went to medical school, where they did their residency, whether they are board certified, and how long they have been practicing in the area.
When a doctor recommends a procedure or treatment, ask the doctor to explain the risks and benefits of the procedure or treatment, as well as the risks and benefits of alternative treatments, including doing nothing. Patients should also ask about how long the treatment or procedure has been around, and how long the doctor has been performing it.
While Texas law has given very one-sided protections to doctors and hospitals when it comes to their decision-making, there is nothing that prevents informed patients from asking their doctors good questions before deciding to go forward with health care.
